NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
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No. 12-3563
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UNITED STATES OF AMERICA
v.
MICHAEL ARRINGTON,
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Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania
(D.C. Criminal No. 1-09-cr-00078-009)
District Judge: Hon. Yvette Kane
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Submitted Pursuant to Third Circuit LAR 34.1(a)
May 30, 2013
BEFORE: JORDAN, VANASKIE and COWEN, Circuit Judges
(Opinion Filed: July 17, 2013)
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OPINION
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COWEN, Circuit Judge.
Michael Arrington (Arrington) appeals a judgment of criminal conviction and
sentence that resulted after a jury trial on drug-related charges. Arrington argues that the

conviction should be vacated because the Government committed prosecutorial

misconduct by failing to correct inconsistent testimony between two witnesses and
because the District Court abused its discretion by allowing the Government to admit
evidence that Arrington absconded from state parole after federal authorities arrested his
co-conspirators. We will affirm. 1
I.
Arrington first argues that the Government committed prosecutorial misconduct
by failing to correct inconsistent testimony made by two Government witnesses. As
Arrington did not raise this at trial, we review for plain error. See United States v.
Brennan, 326 F.3d 176, 182 (3d Cir. 2003).
At trial, the Government presented evidence that Arrington was a supplier of
heroin to several co-conspirators, including Omar Davenport (Davenport). Davenport
testified that Arrington traveled to his home on a weekly basis to provide him with
heroin. Davenport also testified that his girlfriend, Bobbie Sue Miller (Miller), assisted
him in the drug business and that Miller was frequently in his house when Arrington
would deliver heroin, but was not in the room. (App. 155.) According to Davenport,
Miller was probably in the bedroom, and the drug deliveries took place in the living
room. (App. 156.)

The District Court had jurisdiction pursuant to 18 U.S.C. 3231. We have jurisdiction
pursuant to 28 U.S.C. 1291.
2

Miller, however, testified that on two occasions, she saw Arrington deliver drugs
to Davenport. On one occasion, Miller stated that she was sitting in the living room
when Arrington arrived and that she saw Davenport give Arrington a bag containing
cash. (App. 186.) Miller testified that on another occasion, she saw Arrington deliver a
package containing a block of heroin to Davenport. (App. 188.)
Arrington argues that the Government committed misconduct by vouching for the
contradictory testimony of Davenport and Miller and for failing to correct Millers
alleged perjury at trial. 2 In order to assert a due process violation premised on perjury by
a government witness, the defendant must show that (a) the witness committed perjury;
(b) the Government knew or should have known of the perjury; (c) the testimony went
uncorrected; and (d) there is a reasonable likelihood that the testimony could have
affected the verdict. See United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir. 2008).
As a threshold matter, we cannot conclude that Miller committed perjury. A
witness commits perjury if he or she gives false testimony concerning a material matter
with the willful intent to provide false testimony, rather than as a result of confusion,
mistake, or faulty memory. Id. (quoting United States v. Dunnigan, 507 U.S. 87, 94
(1993)). However, even assuming that Arrington can establish that Miller perjured
herself, Arrington cannot show that there was a reasonable likelihood that the false
testimony could have affected the verdict. Arrington actually used these inconsistencies
to his advantage; during his closing argument, Arringtons counsel highlighted these

Arrington apparently assumes that Millers testimony was perjurious and that
3

inconsistencies to the jury in an attempt to diminish Millers credibility. (App. 362.) 3

Thus, we conclude that there was no due process violation. 4
II.
Arrington next argues that the District Court erred in admitting testimony that
Arrington absconded from state parole after federal authorities investigated and arrested
his co-conspirators. As Arrington preserved his objection by filing a pre-trial motion to
exclude this evidence, we review for abuse of discretion. See United States v. Kemp, 500
F.3d 257, 295 (3d Cir. 2007).
In February 2009, federal law enforcement arrested three individuals who were
allegedly involved in the drug conspiracy, including Davenport and Miller. After the
arrests, Arrington, who was on parole in Pennsylvania, began missing his parole hearings
and was declared a fugitive by the Pennsylvania State Board of Parole. More than a year

Davenport testified truthfully.

3
Arringtons counsel stated:
What did Ms. Miller say? She was in the room, she saw the sale of heroin,
she saw it changing hands, she saw money changing hands. What did Mr.
Davenport say? She was never in the room. Thats what he testified to, she
was never in the room when that happened. Ladies and gentlemen, thats
not an insignificant detail, either. Thats not the kind of thing that
memories just vary on because people remember things differently. You
remember if you were there where drugs and lots of money were changing
hands. Two different stories. Whos telling the truth? The Government
wants you believe they were both being truthful in this courtroom.
(App. 362.)
4

Arrington also alleges that perjury occurred when Miller testified that Davenport
threatened to kill her several times and once threatened to cut off her fingers while
Davenport denied that these incidents occurred. This inconsistent testimony was also
likely favorable to Arrington, as it may have diminished Davenports credibility, a fact
4

later, Arrington was arrested in Baltimore, Maryland. At the time of arrest, he was using
the name Richard Bloomfield.
Prior to trial, the Government gave Arrington notice that it intended to introduce
evidence that at the time of the arrest of his alleged co-conspirators, Arrington absconded
from parole. Arrington objected, and in a written opinion, the District Court held that the
evidence was admissible for the limited purpose of proving Arringtons consciousness of
guilt. At trial Arringtons parole officer testified that Arrington was initially a model
parolee, but that when his alleged co-conspirators were arrested, he absconded from
parole. The parties stipulated that Arrington was arrested in Baltimore and that he was
using the name Richard Bloomfield. The District Court provided jury instructions that
this evidence could only be used for the limited purpose of deciding whether Arrington
had a consciousness of guilt, and could not be used for the improper purpose of
concluding that Arrington has bad character or a propensity to commit crimes.
The District Court did not abuse its discretion by admitting this evidence. While
the Federal Rules of Evidence do not allow the admission of evidence of an action to
prove a persons character in order to show that on a particular occasion the person
acted in accordance with the character, Fed. R. Evid. 404(b)(1), such evidence can be
admitted for another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident, Fed. R. Evid.
404(b)(2). Here, the Government introduced the evidence, not to prove that Arrington

that Arringtons counsel emphasized in his closing. (App. 354-55.)

5

has bad character and acted in accordance with that character, but rather to show that
fleeing from parole is evidence of his consciousness of guilt, and the District Court
provided clear instructions to the jury about the proper use of this evidence. While the
evidence can only be admitted if the probative value of the evidence outweighs any
unfair prejudice, see Huddleston v. United States, 485 U.S. 681, 691 (1988) (citing Fed.
R. Evid. 403), the District Court did not abuse its discretion in concluding that the
evidence is more probative than prejudicial.
III.
For the foregoing reasons, we will affirm the judgment of conviction and sentence
of the District Court.